Frances P. Kiteley

The appellants, an investment management firm and minority shareholder, appealed the dismissal of their oppression application against the respondent corporation and its directors.

The application judge had found that the challenged related-party transactions were within the reasonable expectations of shareholders and protected by the business judgment rule.

The Divisional Court dismissed the appeal on the merits, finding no palpable and overriding error in the application judge's factual findings or application of the law.

The court upheld the award of substantial indemnity costs due to the appellants' unfounded allegations of misconduct and misuse of the court process, but allowed the costs appeal in part to deduct pre-application costs.

The Law Society of Upper Canada appealed a decision of its Appeal Panel restoring the membership of a former judge who had resigned following findings of serious sexual misconduct.

The Divisional Court dismissed the appeal, upholding the Appeal Panel's findings that the Hearing Panel erred in applying the enhanced 'Bernstein' standard of proof and in concluding it lacked jurisdiction to impose conditions on a restored licence.

The Court confirmed that the standard of proof for restoration is a simple balance of probabilities, the burden of proof lies on the applicant, and the Law Society has broad jurisdiction to impose conditions on a restored licence to protect the public interest.

The applicant school board sought judicial review of an arbitrator's award which found that the collective agreement obliged the board to pay a 6-week 'top-up' to educational support staff on pregnancy leave, even if the birth occurred during the summer layoff period when they were not receiving regular wages.

The Divisional Court (majority) allowed the application and quashed the award, finding that the arbitrator unreasonably relied on arbitral jurisprudence regarding teachers as a 'backdrop' when the language of the collective agreement was clear and unambiguous.

The dissenting judge would have upheld the arbitrator's decision as reasonable.

The appellants co-signed a bank loan for a third party who subsequently defaulted and declared bankruptcy.

The bank obtained judgment against the appellants at trial.

On appeal, the appellants argued the trial judge demonstrated a reasonable apprehension of bias and failed to properly assess conflicting evidence regarding their understanding of the loan documents.

The Divisional Court dismissed the appeal, finding no apprehension of bias and no palpable and overriding error in the trial judge's factual findings.

However, the court granted judgment on the appellants' crossclaim against the primary borrower, which the trial judge had overlooked.

The appellants co-signed a loan for a third party who subsequently defaulted.

The respondent bank obtained judgment against the appellants at trial.

On appeal, the appellants argued the trial judge demonstrated a reasonable apprehension of bias and made palpable and overriding errors in finding they understood their obligations as co-signers.

The Divisional Court dismissed the appeal, finding no apprehension of bias and deferring to the trial judge's factual findings that the appellants were informed of their liability.

However, the court granted the appellants' crossclaim against the primary borrower, which the trial judge had overlooked.

The defendant in a motor vehicle accident action served a jury notice.

At the commencement of trial, the plaintiffs moved to strike the jury notice, arguing the main plaintiff, a Muslim-Canadian woman of Afghani descent, would not receive a fair trial due to post-9/11 racism and the political climate.

The trial judge struck the jury notice, taking judicial notice of a reasonable apprehension of bias.

The Divisional Court allowed the defendant's appeal, holding that the trial judge erred in taking judicial notice of such bias without evidence, as the facts were not so notorious as to be beyond reasonable debate.

The matter was remitted to a different trial judge.

The applicant alleged he was assaulted by police officers and sought to file a claim with the Criminal Injuries Compensation Board.

The Board refused to issue an application form on the basis that no criminal charges were brought against the officers and it lacked credible evidence of an assault.

The Divisional Court granted the application for judicial review, finding that the Board denied the applicant procedural fairness by prejudging the merits of his claim under the guise of its gatekeeping function.

The landlord appealed a decision of the Landlord and Tenant Board, arguing it was denied natural justice when the Board refused its request for an adjournment.

The landlord had requested the adjournment because its representative was unavailable, but provided no evidence or explanation for the unavailability.

The Divisional Court dismissed the appeal, finding that the Board did not err in principle by refusing the adjournment, as the landlord provided no plausible explanation and the prejudice was of its own making.

One judge dissented, arguing the Board failed to balance the prejudice to both parties.

The appellant tenant appealed a decision of the Landlord and Tenant Board, which found that the landlord's restriction of her access to the building's parking garage did not constitute a substantial interference with her reasonable enjoyment of the rental unit.

The Divisional Court dismissed the appeal, holding that the issue of substantial interference is a question of mixed fact and law, over which the court has no jurisdiction.

The court further noted that even if it were a question of law, the Board's conclusion was correct.

The appellant appealed a decision of the Licence Appeal Tribunal upholding the revocation of his real estate license.

The appellant was an undischarged bankrupt who had previously pleaded guilty to misappropriating trust funds in connection with his real estate business.

The Divisional Court applied the reasonableness standard of review to the Tribunal's findings of fact and exercise of discretion.

The Court found no palpable and overriding error, concluding that the penalty of revocation was reasonable and necessary to protect the public.

The appeal was dismissed with costs.

The appellants appealed a decision dismissing their claim to wind up two family-owned companies under s. 207 of the OBCA.

The appellants argued that irreconcilable differences and a mutual loss of confidence required the court to intervene.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's conclusion that the appellant had no reasonable expectation that the business would be wound up or that he would continue to exercise de facto control.

The appellant police officer appealed a decision of the Ontario Civilian Commission on Police Services upholding a finding of discreditable conduct.

The charge arose after the appellant discharged his firearm at the tires of a fleeing stolen vehicle during a dangerous pursuit.

The Divisional Court found that the Hearing Officer and the Commission applied the wrong test by focusing on the objective reasonableness of the force used rather than the appellant's subjective 'sole purpose' for discharging the firearm under s. 8 of O. Reg. 546/99.

The appeal was allowed and the charge of discreditable conduct was dismissed.

The defendant sought leave to appeal an order certifying a class action alleging vertical price-fixing conspiracies in the sale of engineering resins.

The plaintiff cross-appealed, seeking to expand the class definition to include Tier 1 manufacturers.

The Divisional Court dismissed both motions for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's discretionary, fact-driven conclusions regarding the class definition and the common issues of loss and liability.

The appellants appealed a decision of the Ontario Energy Board which held that it lacked jurisdiction to order the implementation of a low-income rate affordability program for natural gas consumers.

The Divisional Court allowed the appeal, finding that the broad statutory authority to fix 'just and reasonable rates' using 'any method or technique' permitted the Board to consider ability to pay.

The majority concluded that while cost of service is the starting point, the Board has the jurisdiction to implement differential pricing to protect the interests of low-income consumers.

The appellant appealed a trial judgment awarding the respondent damages for an assault that occurred during a recreational hockey game.

The trial judge found that the appellant deliberately punched the respondent in the face after the referee had stopped play, causing dental injuries.

The Divisional Court upheld the trial judge's findings that the respondent did not assume the risk of a deliberate, unprovoked attack and that the liability waiver did not bar recovery.

The court also upheld the award of special damages for future dental work, finding the respondent's dentist was qualified to provide opinion evidence.

The appeal was dismissed.

The appellant licensee appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario finding it breached s. 45(1) of O. Reg 719/90 by permitting drunkenness on its premises.

The Divisional Court allowed the appeal, holding that the Board committed an error of law by failing to make a specific finding that the licensee 'permitted' the intoxicated patron to be on the premises, which is an essential element of the infraction.

The finding of a violation was set aside.

The plaintiffs sought leave to appeal an order made on the eve of trial that struck the action from the trial list, required a formal motion to amend the Statement of Claim before a Master, and ordered substantial costs thrown away.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions or good reason to doubt the correctness of the trial judge's order, which addressed a unique and complicated situation.

Costs of the leave motion were awarded to the respondents on a partial indemnity basis.

The appellants appealed the dismissal of their motion for certification of a class action against Imperial Tobacco Canada Limited.

The proposed class action alleged that the respondent's cigarettes were defectively designed because they posed an unreasonable risk of igniting residential fires.

The Divisional Court upheld the motions judge's findings that the proposed class definitions were unacceptably merits-based, that a class action was not the preferable procedure due to overwhelming individual causation issues, and that the proposed litigation plan was unworkable.

The respondent's cross-appeal regarding costs was also dismissed.

The appellant appealed a decision of the Social Benefits Tribunal that upheld the cancellation of his disability benefits.

The appellant argued that the Tribunal erred in law by finding he and another individual met the definition of 'spouse' under O. Reg. 222/98, asserting that a mutual written declaration was required.

The Divisional Court dismissed the appeal, holding that the Tribunal made no error of law and was entitled to consider surrounding circumstances to determine if a declaration had been made.

The self-represented plaintiff appealed a Small Claims Court decision dismissing his claims against the City of Toronto and the Toronto Police Services Board.

The Divisional Court upheld the dismissal of claims based on direct liability and statute-barred parking tags.

However, the court allowed the appeal regarding abuse of process, finding that the plaintiff was not seeking to re-litigate or set aside a prior judicial finding.

The appeal was allowed in part, and costs were awarded to the plaintiff.